The Punjab and Haryana high court has made it clear that courts can order release of an accused of money laundering under police custody without fulfilling twin conditions as mandated under the Prevention of Money Laundering Act (PMLA), 2002.

“The release from prison in police custody is neither bail nor interim bail. While out of prison in police custody, the inmate gets out of the prison’s four walls but is under continued detention. Meanwhile, while on bail or interim bail, the accused is not detained but only has an undertaking through bond to appear before the court or surrender to the prison,” the bench of justice Anoop Chitkara observed while upholding an order of a special court in Panchkula, Haryana, which was challenged by the Enforcement Directorate (ED).

The PMLA under Section 45 mandates that before granting bail to an accused the public prosecutor has to be given an opportunity to oppose the application for such release and where the public prosecutor opposes the application, the court can allow bail if it is satisfied that there are reasonable grounds for believing that the person is not guilty of such offence and that he is not likely to commit any offence while on bail.

In the case in hand, the ED had challenged four days release granted by the PMLA court in Panchkula under police custody to an accused to enable him to procure documents to file a reply to the show-cause served by the ED. The accused, Narinder Khillan was being investigated by the agency for money laundering and had applied before the special court for 15 days interim release to collect documents to file a reply to the show- cause notice regarding the retention of cash, jewellery, digital devices, FDRs, etc.

He had argued that he could not have filed the reply unless he would personally be permitted to visit the offices i.e., banks, income tax department, and the persons, including a chartered accountant.

The trial court had allowed four days release. However, asked him to give a detailed schedule of his visit to different offices and meetings with different people.

The ED had opposed the release/bail arguing that the accused did not satisfy the twin conditions of Section 45 of PMLA and had also raised some other arguments such as gravity of offence, him being a flight risk and apprehension of tampering with the evidence.

The high court did not agree with the arguments raised by the ED and observed that the two conditions would have applied only when the court had released the petitioner on bail, whereas the court never released him on interim bail but made arrangements to take him out of prison in police custody to file a proper response to the notice issued by the ED.

“The primary concerns for a judge while ordering an inmate’s release in police custody are the accused being forcibly released by their accomplices, the accused being a flight risk, or the existence of a risk to the accused’s life. Thus, the twin conditions of Section 45 of the Prevention of Money Laundering Act, 2002, neither attract nor are required to be complied with while passing an order for release in police custody,” the bench asserted.

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